AKN17 v Minister for Immigration and Border Protection
[2019] FCA 741
•3 May 2019
FEDERAL COURT OF AUSTRALIA
AKN17 v Minister for Immigration and Border Protection [2019] FCA 741
File number: NSD 785 of 2018 Judge: WIGNEY J Date of judgment: 3 May 2019 Catchwords: MIGRATION – refusal of an application for a Protection (Class XA) visa – where delegate of the Minister for Immigration and Border Protection refused application for a protection visa on the grounds that the applicant did not satisfy the relevant criteria – where applicant applied to the Administrative Appeals Tribunal for review of the decision by the Minister for Immigration and Border Protection – where review application was unsuccessful – where applicant filed an application for judicial review of the decision by the Administrative Appeals Tribunal in the Federal Circuit Court of Australia – review application dismissed by the Federal Circuit Court of Australia
MIGRATION – application for an extension of time to file a notice of appeal from judgment of the Federal Circuit Court of Australia – where applicant did not file an appeal from the ex tempore judgment of the Federal Circuit Court of Australia within the required time in accordance with rr 1.61 and 36.03(a)(i) of the Federal Court Rules 2011 (Cth) – where applicant claimed notice of appeal was not filed within time as copy of the written judgment had not been provided – whether non-provision or later provision of written version of ex tempore judgment is a reasonable explanation for not filing a notice of appeal within time – where the applicant’s explanation for not filing an application for extension of time was found to be not reasonable – where applicant did not demonstrate any arguable grounds of appeal from primary judge’s judgment – application for an extension of time to file a notice of appeal dismissed
Legislation: Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa)
Federal Court Rules 2011 (Cth), rr 1.61, 36.03(a)(i)
Date of hearing: 3 May 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 15 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Ms A Wong of Mills Oakley Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 785 of 2018 BETWEEN: AKN17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
3 MAY 2019
THE COURT ORDERS THAT:
1.The applicant’s application for an extension of time in which to file a notice of appeal be dismissed.
2.The applicant pay the first respondent’s costs of the application as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)WIGNEY J:
This is an application for an extension of time to file a notice of appeal from a judgment of the Federal Circuit Court of Australia. The applicant is a citizen of Malaysia who arrived in Australia in January 2014. In November 2015, he lodged an application for a Protection (Class XA) visa. That application was refused by a delegate of the respondent, the Minister for Immigration and Border Protection, on the basis that the applicant did not satisfy the criteria for the grant of such a visa. The applicant applied to the Administrative Appeals Tribunal for a review of the Minister’s decision. That review application was unsuccessful.
The applicant had claimed that he feared that he would be harmed if he returned to Malaysia. The essential basis of that claim was said to be that he had been threatened by a person or persons in Malaysia from whom he had borrowed money. The applicant also claimed to fear harm because he was of Chinese ethnicity and ethnic Chinese were, he claimed, discriminated against in Malaysia. The applicant also asserted that it would be hard for him to make a living in Malaysia.
The Tribunal rejected the applicant’s claim that he feared that he would be harmed in Malaysia. It found that the applicant was not a credible, truthful or reliable witness, and gave detailed reasons for why that was so. On that basis it rejected the applicant’s evidence and claims concerning past threats of harm from persons in Malaysia and rejected his claim that he feared returning to Malaysia on account of any such threats or for any other reason. The Tribunal also found, primarily on the basis of an assessment of the state of affairs in Malaysia by the Department of Foreign Affairs and Trade (DFAT), that it was not satisfied that there was any real chance or risk that the applicant would suffer or face serious or significant harm in Malaysia on account of his Chinese ethnicity. The Tribunal accordingly found that the applicant did not satisfy the criteria in s 36(2)(a) or s 36(2)(aa) of the Migration Act1958 (Cth).
Following his unsuccessful review application, the applicant filed an application for judicial review of the Tribunal’s decision in the Circuit Court. The grounds of that review application were (as drafted):
I believe that jurisdictional errors were made by the Tribunal.
1.The Tribunal misunderstood my background, which leads to wrong conclusion.
2.The Tribunal did not properly consider discrimination suffered by ethnic Chinese.
3. The Tribunal rejected my claims by citing unfavourable information.
The applicant’s judicial review application was heard by the primary judge in the Circuit Court on 18 April 2018. The primary judge dismissed the application on the same day and delivered oral ex tempore reasons for judgment. A written version of the ex tempore reasons for judgment was subsequently published, though it is unclear exactly when. It is apparent from the primary judge’s judgment that her Honour carefully considered the applicant’s grounds of review and the arguments and submissions that he advanced in support of them.
As for the first ground of review, her Honour rejected the applicant’s contention that the Tribunal had in any way misunderstood his claims. Rather, the Tribunal had considered them and rejected them because it found that the applicant was not a truthful or reliable witness. The primary judge also rejected the applicant’s second ground of review and found that the Tribunal’s findings that the applicant was unlikely to suffer any persecution or harm on account of his Chinese ethnicity were open on the materials before the Tribunal, including the DFAT assessment. That finding also effectively disposed of the applicant’s third ground to the extent that it was suggested that the relevant DFAT assessment was the “unfavourable information” about which the applicant complained.
The applicant was required by rr 1.61 and 36.03(a)(i) of the Federal Court Rules 2011 (Cth) to file any appeal from the judgment of the Circuit Court by 9 May 2018. He did not do so. He filed his application for an extension of time on 15 May 2018, six days after the expiry of the appeal period. In his affidavit in support of his application, the applicant claimed that he did not file his appeal within time because the Circuit Court did not send him a copy of the judgment. That was presumably a reference to the written version of the primary judge’s ex tempore reasons for judgment.
While in some circumstances the non-provision or late provision of the written version of an ex tempore judgment might perhaps provide a reasonable explanation for not filing an appeal within time, I am nonetheless not satisfied that the applicant’s explanation is a reasonable one in all the circumstances. The applicant was present when the primary judge delivered her oral ex tempore reasons for judgment. He was assisted by an interpreter. There is no evidence to suggest that he did not understand the primary judge’s reasons or that he was unable to prepare his notice of appeal on the basis of those oral reasons. Nor is there any suggestion, let alone evidence, that the applicant was in any other way impaired or hindered by the fact that he did not receive the written version of the reasons.
In any event, and perhaps more fundamentally, the applicant has not demonstrated that he has any arguable grounds of appeal from the primary judge’s judgment. His proposed grounds of appeal set out in his draft notice of appeal are as follows (as drafted):
1.There exists wrong application of law.
The risk that the appellant will be mistreated in Malaysia is not properly considered.
Irrelevant information was considered.
2.There exists procedural unfairness.
Whether my case was treated in the fair way is not considered properly.
I was not given sufficient opportunity to make representation in support of my claims.
The applicant did not file any written submissions in support of his application. Nor did he advance any meaningful oral submissions in support of the draft grounds of appeal or any other proposed grounds of appeal.
In relation to ground one, it is entirely unclear what the alleged wrong application of law is said to be. There is no basis for the assertion that the applicant’s claims concerning the risk that he would be mistreated in Malaysia were not properly considered by the Tribunal. Nor is there any basis for any assertion that the primary judge was in any way in error in finding that the applicant’s claims were properly considered by the Tribunal. The applicant did not indicate what irrelevant information he said was considered by the Tribunal. Nor is there any apparent basis for that contention.
As for the second proposed ground of appeal, it is unclear whether the applicant’s contention that he was denied procedural fairness relates to the Tribunal or the Circuit Court. Either way, there is absolutely no basis for that contention. The applicant did not advance any meaningful submissions in support of his claim that he was denied procedural fairness. Nor did he adduce any evidence in support of that contention.
A fair reading of both the Tribunal’s reasons and the judgment of the primary judge indicates that the applicant was given every opportunity to present his case in both the Tribunal and the Circuit Court.
Given that the applicant has failed to articulate or demonstrate any arguable ground of appeal, his application for an extension of time in which to file an appeal must be dismissed with costs.
The orders of the Court are as follows:
(1)The applicant’s application for an extension of time in which to file a notice of appeal be dismissed.
(2)The applicant pay the first respondent’s costs of the application as agreed or assessed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate:
Dated: 24 May 2019
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